Prof Annette Singleton Jackson Vs The University of Eswatini (354/2019) [2020] SZIC 164 [01 December 2020]
The applicant is an American citizen who is formally employed by the respondent as a Professor in the faculty of commerce. The respondent is the University of Eswatini (UNESWA) which is based in Kwaluseni in Matsapha. The applicant lodged this application seeking the following orders:
(1) The respondent’s adverse decision of not renewing the applicant’s contract of employment be set aside as she was not afforded a hearing for the reasons of the non-renewal.
(2) The respondent be ordered to renew the applicant’s contract with effect from 1 January 2020 for a further 2 years on the same terms and conditions of employment.
(3) The recruitment of a new person to take up the applicant’s position with the respondent should be interdicted and/or restrained.
(4) The respondent be ordered to continue paying the applicant’s monthly salary.
(5) The respondent be ordered to pay for the costs of this application.
(6) Further and/or alternative relief.
Background
The applicant was employed on a fixed-term contract that commenced in January 2018 and expired in January 2020. In June 2018, the applicant travelled to the United States of America (USA) with examinations scripts and she allegedly informed the Head of Department (HOD) about her travel and the status of the scripts. A dispute surfaced around who initiated this communication with the applicant claiming that she contacted the HOD to make arrangements to get the scripts to Eswatini, while on the other side, the respondent claims that the HOD initiated the communication after submission of the scripts was delayed. The respondent claims that is after this inquiry that they realised that the applicant was out of the country without relaying anything to her employer. In April 2019, an External Examiner rejected an examination that was set by the applicant. The applicant claims that this was not the first time she had submitted examinations to the External Examiner and she had no problems in the past. The respondent explained that the role of the External Examiner is quality assurance and if the examination from the applicant was rejected then it means it was sub-standard.
There were other disagreements between the HOD and the applicant about the applicant not meeting certain performance standards. On the 2nd of May 2019, the applicant submitted an application for the renewal of her contract. The respondent responded to this application on the 31st of May 2019 informing her that her contract will not be renewed. The applicant was dissatisfied with this response and she wrote to the respondent requesting for reasons why her contract was not renewed. The reasons were given to her on the 9th of September 2019 after the applicant had requested for the intervention of the Chairman of the respondent’s council. Even though the respondent admitted that it is not obligated to furnish the applicant with reasons why her contract was not renewed, reasons for non-renewal were given under these sub-headings:
(1) Poor work performance.
(2) Lack of student supervision.
(3) Not attending meetings and contributing to departmental meetings.
(4) Quality of work not meeting expectations.
The applicant submitted that she should have been given a hearing before the decision not to renew her contract was made. This would have given her an opportunity to refute the allegations that were raised by the Dean and the HOD to the Academic & Administrative Staff Committee.
The respondent raised five points of law which are:
(1) The Court has no jurisdiction to hear the matter because it should have been reported to the Conciliation, Mediation & Arbitration Commission (CMAC) and dealt with under Part VIII of the Industrial Relations Act of 2000 (as amended).
(2) That in essence the application required the Court to determine whether the applicant was fairly dismissed and the Court does not sit as one of review under these circumstances, but it sits as one of first instance.
(3) Section 35 (1) (d) of the Employment Act of 1980 applies to this case because the contract expired on it’s own terms, hence the law does not require the applicant to be furnished with a hearing whether or not to renew her contract unless a legitimate expectation had been created.
(4) Section 33 of the Constitution of Eswatini on the right to administrative justice did not apply in an employer-employee relationship.
(5) That the matter is inundated with disputes of fact that were foreseeable and as such, the applicant should have not brought this it on a Notice of Motion.
On the contrary, the applicant’s counsel argued that the Supreme Court of Eswatini held that a complaint premised on the failure of an employer to afford an employee a hearing on matters including the non-renewal of a fixed term contract may be heard by the Court without the employee first reporting a dispute with CMAC. It was further argued that Section 8 (3) of the Industrial Relations Act empowers the Court to grant injunctive relief which is was the applicant in casu is seeking. The applicant’s counsel also submitted that the Court has an obligation to enforce the right to a fair hearing for all employees including precautionary employees. The applicant also contended that the audi alteram partem rule was indispensable. When a functionary has to make a decision, it is enjoined that before making such a decision to first hear all the parties who are likely to be affected.
Analysis of Arguments
The court stated that it is trite law that it cannot reject a matter purely on the grounds that the applicant has not complied with Part VIII of the Industrial Relations Act of 2000. The Court found that the matter include the determination of a question of law, which is whether the respondent is legally obligated to afford the applicant a hearing before deciding not to renew her contract of employment. The Court noted that there is no provision in the applicant’s contract of employment that confers a right to the renewal of the contract or to be heard before a decision on renewal is taken by the respondent. There is also no provision in the contract that obligated the respondent to furnish the applicant with reasons for the non-renewal of her contract. The Court stated that it can not then incorporate terms that were never agreed by the parties. The Court further stated that the applicant had to prove that in terms of the fixed term contract, she was entitled to be treated procedurally fairly before the respondent decided on the renewal of her contract. The Court told the applicant that she had to present facts that she had a reasonable expectation that she would be afforded an opportunity to be heard before her fate was decided.
According to the Court, it is trite law in this jurisdiction that that the doctrine of legitimate expectation only gives rise to the right to be heard before an adverse decision is taken and that right is dependent on the rights or interest of the person who stands to be affected by the adverse decision. The applicant did not allege that she had a legitimate expectation to be heard before the respondent took it’s decision. The Court also noted that the applicant knew from the beginning of her contract that performance was a factor in the renewal of her contract. From the affidavits filed, the Court is not in a position to make a finding whether the incidents the respondent is accusing the applicant of are true or not as this requires the leading of oral evidence. The Court also decided that it cannot usurp the respondent’s prerogative whether the performance standards set for the applicant were reasonable. Disputes of fact whether the performance standards were met or not become triable issues.
The Court stated that there are lessons to be learnt from this case. The respondent did not have an obligation to give reasons to the applicant for the non-renewal of her contract, but after pressure from the latter, the respondent relented. In a bid to protect her reputation, the applicant demanded reasons when she only had a right to a decision. The applicant may still assuage her anguish by reporting a dispute of unfair dismissal in terms of Part VIII of the Industrial Relations Act.
Judgement
The Court ordered as follows:
(1) The application was dismissed.
(2) Each party is to pay for it’s own costs.
Dec 28 2020 10:42PM